Wednesday, July 20, 2016


U.S. Bank moved for summary judgment, striking Azad's answer and dismissing the counterclaims and defenses in this foreclosure action. Bank alleged a loan modification was entered into and that the holder of the mortgage and underlying debt defaulted under their terms by failing to make monthly payments due. As such, bank elected to accelerate the entire debt, moving for summary judgment and an order of reference. After obtaining an order of reference and a judgment of foreclosure and sale, bank vacated the judgment and twice discontinued the action, commencing a third foreclosure suit that was dismissed in 2013. Azad raised, as an affirmative defense, that the action was barred by the statute of limitations—foreclosure actions were governed by a six-year limitations period. The debt was accelerated in Oct. 2008, and the suit not commenced until Nov. 2014, making it time-barred if lender took no other affirmative action to revoke its election to accelerate all sums due. The loan modification would act as a revocation, but Azad denied entering to such one, thus, there was a question of fact if she entered into one, raising an issue of fact if there was a revocation of the accelerated debt and if the action was timely. Summary judgment and order of reference was denied.

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